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9/11tv Former U.S. Attorneys General Discuss Constitutional Limits to Federal Power CSPAN July 23, 2026 10:21pm-11:03pm EDT
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not going to be the triumph in march that thought it was, and that is when all the tools came out of the toolbox of the establishment to try to stop burning from -- stop bernie from winning the nomination. you can listen to q&a and all of our podcasts on our free c-span now app or wherever you get your podcasts. former u.s. attorneys general jeff sessions add to john ashcroft discussed constitutional limits to federal power at an event hosted by the national review institute in washington dc.
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>> ladies and gentlemen, please welcome to the stage the national review you. -- review ceo. [applause] >> good morning and welcome. we are continuing national review's series and reflection of america's 250th anniversary. we call this our listing liberty and prosperity series. this is born of the conviction that the american founding is not a relic to be admired from a distance, but designed to be understood, defended and advanced in this moment in american history.
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he warned that the accumulation of powers, in the same hands, whether one, few, or many, or whether hereditary, self-appointed or projected may be announced the very definition of tyranny. that warning was not abstract. medicine and his fellow framers had studied history -- madison and his fellow framers had studied history and they knew that liberty dies less often by conquest than the slow concentration of power into a single set of hands.
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the remedy was structural, not sentimental. in federalist 51, madison explained the surest check on power is not virtue alone, but design. given ambition must be made to counteract ambition, each branch, he wrote, must be given the necessary constitutional means and personal motives to resist encroachment of the others. among the three, the framers set the judiciary apart. insulated by life tenure and undiminished compensation, precisely so that its judgments would rest on law rather than by design or the passions of the moment it was to be by design the branch least tempted to bend to faction. and for that reason the branch most necessary to a government of laws. we gather this morning because
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that design is being tested. for the last century, the checks and balances that the framers designed in a fusion of power across the states has become more and more concentrated at the federal level. courts and prosecutors have been drawn into the center of a partisan conflict. proposals to pack the supreme court, end the filibuster, restructuring the federal judiciary are no longer fringe ideas. they are openly argued as tools for the political advantage of the left.
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james rosen and phil klein will bring us through the work and ideas of justice scalia, the justice who did more than any other modern figure to restore originalism nad textuali -- originalism and textualism to the court. christian waggoner will speak to the judiciary's independence and recent victories for religious liberty and free space. tc panics and charlie -- kc maddox and charlie will examine the structure means to what we have the responsibility to steward. and paul clement will join to reflect on recent victories and the ongoing challenges in defending the constitution and the structure that madison and other framers put into place. nearly 40 years ago at the bicentennial for the constitution, president reagan
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captured what the document means to our enduring experiment and encapsulated what we will cover today. he said if our constitution has endured through times perilous as well as prosperous, it has not been simply as a plan of government, no matter how ingenious or inspired it might be. this document that we honor has always been something more to us. filled with deeper feeling than one of simple admiration. the feeling, one might say, more of reverence. one scholar described our constitution as a kind of covenant. it is a covenant we made not only with ourselves, but with all of mankind. it is a human covenant. yes, and beyond that a covenant with a supreme being to whom our founding fathers did constantly
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appeal for assistance. i give special thanks to our sponsors for today's event. and i think you for joining us this morning. with that, let's begin. [applause] >> can you hear me? excellent. i am here with two attorneys general. one of those things you are cap in school like -- are taught in school like whoppers junior.
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i asked what is the most basic question. what is the department of justice? what is the attorney general? this is something people don't agree on. it has been around for 180ish years and still we see arguments to whom it is accountable and so forth. what is it? >> the department of justice was created in the 1870's in the grant administration. who has begun to harmonize and oversee the u.s. attorneys who had preceded it since the judiciary in 1789 right away. the attorney general had been a part-time employee of the federal government for a long time, but the civil war and aftermath of the civil war had found america with sort of a
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polarity -- of a plurality of interpretations as to the enforcement of the law. the ku klux klan was a rampant organization, so i think all those factors came into being as the department was created in the attorney general begin the supervision in an effort to provide -- there is a legal term which refers to the equal protection of the laws, but some level of uniform enforcement of the laws across the country. that is my understanding. i am not a historian. i think that is winning the euros -- that is one of the roles, to make sure there is no substantial federal enforcement. we expect a deferential a legal community in the various states because states have prerogatives to have different laws they choose. in terms of the federal
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government, i don't know the phrase equal protection of the law has been focused on the general public being protected by the law instead of perpetrators being protected by certain guarantees of fairness. i think we all deserve some level of equity in terms of the way the federal law is administered across the country. that came up when i was attorney general in terms of the death penalty. we did not feel the federal death penalty should be located only in stakes, that we felt the deaf painting should be available as a tool of encouraging law enforcement across the entire country. so if some level of equity and uniformity -- i am taking up too much time. let me i this thing -- let me
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lateral this thing to jeff sessions, who is likely to square with the ball. >> john was a great attorney general. we served together in the senate. well, when i was sworn in as united states attorney when reagan appointed me, a young u.s. attorney, i announced that my agenda was to put criminals in jail and protect the united states treasury. that is a big part of what the department of justice does. and you have federal criminal laws which are the supreme law of the land, and every united states attorney advances that if they are doing their job. that is kind of a practical analysis of it. the attorney general position was expanded over the years and the federal prison system is under the attorney general and
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all the fbi and all that is part of it. it is a monumental bureaucracy. when trump was elected, we had massive lawsuits against everything he was doing, one i still hold a grudge about is the immigration ban trump issued first day, and sally gates, i supported her staying on for a few days until i became attorney general, and she refused to defend it. i've still got a grudge about that. she did not say it was unconstitutional, she just did not like it. that is a breach in my view of responsibility. your responsibility is to advance the agenda of the
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executive branch, of which you are a part, not an independent judicial branch. it's a part of the executive branch and it is your duty to defend the resident's neck -- president's actions whenever you can. >> and if you can't, what should you do? >> in britain, you would resign. actually i did resign and trump sent it back, said rejected, make america great he wrote on my resignation letter. [laughter] so we had another 20 months of a tense relationship. fundamentally, he never ordered me to do something i thought was illegal. and despite all his aggressiveness, which i supported -- that is why i supported him early. we had to break through this
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inability of congress to act. we needed a strong leader. there is that tension between protecting the rule of law and getting things done that need to be done. >> the supreme court just ruled in the slaughter case that the executive is unitary in the sense that the president can fire pretty much anyone. there is an exception for the federal reserve which shall be litigated. but the argument is all executive power is placed in the president. one of the responses i read to this was, no, the department of justice, the attorney general, they are independent, floating, some fourth branch of government, they work for the people, they should not be controlled by the president. what is your view on that? >> i think the supreme court got
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it right because i think it is a reference to the constitution. the constitution is a limiting document, and it limits various functions of government. it limits the legislative branch, it limits the executive branch in some ways, and it limits the judicial branch. when there is overlap that begins to confuse functions, i think returning to the constitution is proper. i don't understand fully and have not read carefully enough the decision to understand how you can accept the federal reserve without having, based on a constitution which accepts nothing else. this is grade school, you cannot amend the constitution with a statute. it can be a unanimous vote by the house and senate and the
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president before he signs it can put a nice piece of flannel on the table and have candles and everything, signed it, but it can't be done. presidents cannot give away their powers anymore more than they can extend the constitution on the basis of some agreement with the legislature. there are two constitutional minute strategies i know of, none of which is satisfied. and the congress is an interesting -- there is a cognitive dissonance between the way congress acts to give away its power to the bureaucracy so frequently, and then to say -- to be jealous if the president exercises his power more aggressively. i think the supreme court is beginning to focus on the constitution.
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as the framer setting boundaries for the different aspects of government. in the fragmentation of power is the friend of liberty. if you concentrate power in one branch or another, i think you risk the liberty of the american people. for me liberty is the single core value of human existence. our founders never mentioned democracy, really. democracy has been stolen by the left and they are saying they are getting democracy. democracy is a process for decision-making. democracy does not tell you anything about the outcome of the decision is. liberty is an outcome, a condition in which humanity thrives. democracy is a process. with your accent i can tell you might have respect for churchill, who said democracy is the worst form of government except for everything else we have tried.
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it is a good way to include everyone and get their viewpoints, but to put it in the framework and limits of a constitution, and the constitution that fragments power the way does -- the way our does, it is to be respected because it has a durability and success that no governmental form has enjoyed. >> one of the things we are talking about is threats to this order. there are different ways of looking at the role of the attorney general, of the department of justice. what do you worry about the midst -- about the most? someone who remains nameless becomes president in 2029 and they stand against what you would want to see in the department of justice. what is the big threat? >> that is a good question. within the department there are
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all kinds of long-established principles that may not have been absolutely required, but provide a certain stability in the law. i supported president trump because he was saying we have to preserve this republic. i am going to take the action. i thought that was good. there is tension there, because stability is important. so the health care guy gets murdered, all these trillionaire's, they better be defending the rule of law. the populace might want to rise up. i do think in the long run it is the conservative principle that william buckley taught me, n reading national review, to maintain stability and not
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undermine some important principles to achieve a short-term goal. that is the tension. you mentioned the filibuster. that can be reversed. and it won't be a conservative thing, although a lot of conservatives want to eliminate the filibuster so they can do something good next week. >> what do you think of that? you came in as attorney general under a conservative president who quickly found himself at war. there's a paradox, the need for stability, but in wartime you have to be energetic. do you find that a challenge to balance between the two? >> i think the framers of the constitution made it possible for people to defend the republic, and from the earliest cases that are anchored in my mind are the prize cases in the
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mid-19th century. the ability of presidents to defend the united states from attack or for assets of the united states, but frankly the president wages war, congress is said to be capable of declaring war, and somewhere between these two functions with congress having the power of the purse we have been able to negotiate our way through security challenges and the declaration has become rarer and rarer. the korean conflict, the vietnam conflict, the actions taken in the caribbean and central america and actions taken in the middle east have all been in defense of the national interest without declaration of war.
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truman considered the fact that we were doing this in conjunction with the united nations somehow, justification, that there were continuing appropriations, consent by the congress. we have been able to navigate as well as negotiate those positions between the congress and the resident in defending national interests pretty effectively. obviously those questions are emerging at the front of the public consciousness now. there is a certain consensus about national interest that results in a comity --
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c-o-m-i-t-y, not c-o-m-e-d-y, that has served america well. it has been a service that has lasted centuries. congress declares war, but president wages it, but he has to wage it with some level of cooperation with congress, especially as it relates to the funding capacity. as technology elevates and skyrockets, it seems that the finance of the war is more and more critical to the ability of the president to wage the war properly. constantly refining that cooperation between the legislative branch and executive branch. >> we have panelists on the supreme court, there are people in this country upset with the supreme court, they want to abolish it or alternate. some have suggested ignoring it.
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you were attorney general. there is a theory in american history of departmentalism, that each department should interpret the constitution as they see fit, and if they don't agree with the supreme court they should ignore it. what do you think would happen if an administration and attorney general did that? >> i point out the critical need to have a supreme court that adheres to the constitution. i think we failed badly in not defending the overruling of the abortion case by pointing out the original ruling was not constitutionally based. it was an improper ruling. it was not a decision that i like abortion, you don't like abortion, i have five members of the supreme court and i will impose my will. if we ever get to the point where the average american feels the court's ruling based on politics, that is when the rule
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of law will be in its greatest danger. i think it has served us well that the supreme court takes the role of being the final word on what the constitution means. although historically i am not sure it is clear they have that power. the supreme court ruling on the appointment said you cannot create -- congress cannot erode the power of the president by creating an agency that executes executive functions that encroaches on the president. he can remove anybody that is in an executive role. the same with this chevron case, overruling chevron, where congress passes a law, the
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bureaucrats in the environmental section interpret it this way, and if it gets to court the court says that is reasonable, we will give deference to the agency. but that is an abdication of the -- that is an abdication. the courts ultimately are responsible and not some unelected bureaucrats. >> before questions, are you optimistic or pessimistic about the future of the rule of law in america? >> i'm optimistic. there are challenges to it. there are sore spots in my understanding. one of the things executives have been willing to do is engage in what i call executive repealer, when an executive decides they don't like a particular law, to suspend enforcement of it. i think if we repeat laws -- repeal laws, it ought to be a
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legislative function. if it is onerous to be enforced, enforcement provides the basis -- it happened with marijuana laws when our u.s. attorneys said they don't want to enforce certain laws at a certain level. i said no, if the public does not like marijuana laws, it is not up to us to disband the enforcement of the law, so you ended up with a case that was brought during my opportunity to serve as attorney general. did not get announced until after i had left. and this idea that certain laws will just be suspend by a president, not naming anyone, where you will suspend the laws enforcing immigration.
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we have seen that. it is a disaster as far as i am concerned. of course in the ancient history when i was attorney general, immigration and naturalization service was part of the department of justice at that time and we enforced the laws. law enforcement is the responsibility, and any adjustments -- there's a difference between an executive repealer where you say you will not enforce any laws related to this or the other because it is a construct reference, and the idea of prosecutorial discretion, which is a case-by-case basis that we don't have the right information and evidence or justice would not be served by this particular enforcement. the idea that the presidency of the united states is an opportunity to suspend all the
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laws you don't want to enforce invites the kind of discrimination which is dangerous, meaning you could enforce it on an arbitrary basis in unique settings, but you suspend it for all the people you want to favor in some way because you think they might look favorably upon you at the next election. >> but still optimistic? >> i am optimistic. i am frightened by the idea that people are not publicly saying we want to not have a senate, which is part of the fragmented power of the federal government. fragmentation fosters liberty, and liberty is the core value of this culture. on the aggregation of power, putting it all together diminishes liberty. i'm not a good historian, but i know something about the french revolution. where the judiciary and
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legislative were all rolled together and there was some poor woman knitting stuff -- what was her name? knitting your name in the scarf and all of a sudden your head is rolling out of the guillotine. we don't want to eliminate the supreme court. we don't want to eliminate states. there is sometimes an appetite for a federal mandate of what the states can do. when i was governor we wanted to honor a provision of the missouri constitution that said judges retired at age 70. when we decided not to pay the judges, they sued us. i think it is gregory versus ashcroft. the supreme court said states have a right to have certain laws. it is a frame of fragmentation that undermines the aggregation of power, which is a threat to liberty as far as i am concerned.
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the filibuster rule in the senate slows things down. i'm one guy, i'm glad i don't get all the government i pay for. i don't like the idea of waste and fraud. but the idea that i would get -- i don't need a whole lot more government. >> are you optimistic or pessimistic about the rule of law? >> it's so much better today. when i was a young assistant united states attorney in the 70's, only justice rehnquist made sense. now we have six originalists on the supreme court. judges before that were just advancing political agendas under the guise of interpreting the words of the statute's in the constitution. it was a direct threat. it was undermining public respect for law, as it should have.
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with president truman's nominees, they are great -- trump's nominees, they are great nominees. we have gone from an outnumbered law school professor at supreme court to principled conservatives who trust the legislature to pass laws, and they see they are fairly enforced. i am pretty optimistic about it, but it can go fast. you get two or three resignations on the supreme court and you have a socialist type democratic agenda who refuses to accept failure to achieve their agenda now, and then they will pack the supreme court, and with no filibuster they can succeed in packing it with the majority. this is a scary thing. it is fragile, but i am so proud of this court. dei, you the executiv
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branch rulings, equal rights. justice roberts said your ago the best way to end racial discrimination is quit discriminating on the basis of race. that is a huge map. monumental. this rippled through the private and public sector. i am pretty optimistic right now. >> i think we only have time for one. keep it brief and don't start with "this is more of a statement, really." [laughter] we can hear you. >> what do you think of the constitutionality of these district courts issuing, for example, a stay which is then enforced nationally?
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a federal district court judge can put a stay on some executive order and it is then supposedly enforced nationally. is that constitutional? >> that happened to us immediately in the early days of the first trump administration. i made a big speech about it. they did not like it and i said one of 600 judges sitting on a pile of rocks in the middle of the pacific ocean can stop the entire government of the united states? ridiculous. way too far. justice thomas and others have spoken out against it. you are getting much quicker reversals. circuit courts are reversing these district court's on an emergency basis much quicker. but i don't think we fully dealt with the impropriety -- we called it one-party decisions --
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non-party decisions. in alabama you are not party to the lawsuit in connecticut. anyway, you are right, it is a big danger. it is being curtailed, but still a problem. >> you have thoughts on that or should we go more questions? >> i think jeff sessions is the mind renewed on the supreme court and attorney general's office. he has this figured out. understands it and speaks it clearly. >> we have time for one more question. >> within the unitary executive framework of the constitution, what you think of the senate exercising its leverage to extract a confession from the president or attorney general nominee to wall off criminal
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prosecutions to address concerns people have about politicizing, especially criminal prosecutions at the doj? >> i think the president has a responsibility to make sure the law is enforced. we take an oath to support the constitution and laws of the united states. the president has a responsibility to do that. people say, does the president have the right to ask for the prosecution of an enemy of his? what if the president is the victim of an assassination attempt? and he's shot but he survives, does he have the right to ask the justice department to prosecute the person that sheets him? does he have a duty to do so? if the president knows about violations that offend the law of the united states, does he have a duty to enforce that law through his attorney general? this idea that somehow the
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relationship between the attorney general of the president can be too close, i th ink of president kennedy. who did he have as his attorney general? he had robert kennedy. last i checked, blood was thicker than water. i think the key is we don't prosecute political enemies or friends based on the relationship or enmity politically, we prosecute people who violate the law. when it comes to enemies, we prosecute public enemies because people who violate the law are public enemies. i think we have to be careful not to have differential enforcement. one of the dangers of having an incredible number of laws, and it is reflected in a book which i recommend to you, although it does criticize me on several of its pages, is three felonies a day, the idea that with as many laws as we have, the average
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citizen may violate as many as three laws a day. i'vi've often said you can run a police state with one policeman if you had enough laws so you could identify someone you wanted to go after and just find a law they violated. so, we need to be focused on crimes, not on people, so we product -- prosecute criminal activity regardless of their relationship to people in the administration. the administration of justice requires that. i think it is in the interest of presidents to not be involved in who gets prosecuted because we want them to go around the country and not have their supporters or friends say, uncle fred was a supporter of use -- supporter of yours and why is he being prosecuted?
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i don't do case calls on prosecution. that we leave to the justice department. they don't ask me for permission. and i think the idea that somehow the president has asked for permission to prosecute on some kind of regular places given the number of prosecutions you have in the justice department. people would do absently nothing else. the attorney general would do nothing else if he had to make a judgment on anybody who the law of the united states was to be enforced. >> i think that's right. bill barr was clearly correct, in my view, to say that two wrongs don't make a right. this russia probe, no matter what else you say about it, went on far too long. it was the duty of the department of justice to ensure
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that a be removed as soon as possible from the president of the united states. this impacts his ability to be an effective president. i'm still not happy about that. and county commissioners and stuff and when i was u.s. attorney we didn't talk about it and we brought it to a conclusion as soon as possible. that is the way it ought to be done. two wrongs don't make a right. we need to be very careful. we are not creating the impression about the rules no longer >> apply. unfortunately, we run out of time. i would like to thank the former
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attorneys general. the next panel will be up next. [applause] > now, remarks from james rosen, newsmax chief washington correspondent and author of "scalia rise to greatness." he discusses the life and legacy of the former supreme court justice at an event hosted by the national review institute in washington, d.c. this is just shy of 40 minutes. >> good morning, everyone. i am the editor of the national review online. i am grateful to be here with all of you. to be honest, i was not the firs
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